The Complainant is KidKraft, L.P. of Dallas, Texas, United States of America ("United States"), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Oneandone Private Registration,1&1 Internet, Inc. of Chesterbrook, Pennsylvania, United States. 2. The Domain Name and Registrar
The disputed domain name (the "Disputed Domain Name") is registered with 1&1 Internet AG (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 18, 2016. On February 19, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 23, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent's contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 24, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 15, 2016. The Center received an email communication from the Respondent on March 16, 2016, but the Respondent did not otherwise respond to the Complaint.
The Complainant requested a suspension of the administrative proceeding on March 18, 2016. The proceeding was suspended on March 21, 2016, for purposes of settlement discussions. On April 19, 2016, the Center received a request from the Complainant to reinstitute the administrative proceeding. On April 20, 2016, the Center informed the Parties of the reinstitution of the proceeding.
The Center appointed Carol Anne Been as the sole panelist in this matter on April 27, 2016. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
As alleged in the Complaint, the Complainant designs and distributes toys and children's furniture under the trademark KIDKRAFT which is registered in the United States, Canada, Europe and Australia. Among the Complainant's registrations for the KIDKRAFT mark is the United States Registration No. 2554736, registered on April 2, 2002. The Complainant was established in 1968 and is well-known for its play kitchens, among other things. The Complainant is known around the world and its website is offered in five languages. The Complainant distributes its products through prominent retailers such as Toys "R" Us and Target, and has partnered with other well-known brands such as Hello Kitty, the PGA Tour and Nickelodeon.
The Respondent did not submit a formal response to the Complaint. 5. Parties' Contentions A. Complainant
The Complainant claims that it is the owner of the KIDKRAFT mark which is used in the Disputed Domain Name, and that the term "play kitchen", which also is used in the Disputed Domain Name, is closely associated with the Complainant's brand and products. The Complainant claims that its KIDKRAFT mark is famous. The Complainant claims that the Disputed Domain Name is confusingly similar to the Complainant's trademark.
The Complainant claims that the Respondent is not sponsored by or affiliated with the Complainant, and the Complainant has not given the Respondent permission to use the Complainant's trademarks. The Complainant claims that the Respondent uses the Disputed Domain Name to redirect Internet users to a website featuring links to third-party websites, some of which directly compete with the business of the Complainant, and presumably the Respondent receives pay-per-click fees from the linked websites. The website at the Disputed Domain Name also includes a link that directly references the Complainant. The Complainant claims the Respondent does not use the Disputed Domain Name to provide a bona fide offering of goods or services nor for a legitimate noncommercial or fair use. The Respondent registered the Disputed Domain Name in 2009, long after the Complainant's registration of its domain name in 1998. The Complainant claims the Respondent has no rights or legitimate interests in the Disputed Domain Name.
The Complainant claims it and its KIDKRAFT mark were well known before the Respondent registered the Disputed Domain Name in 2009, and the Respondent knew, or should have known, of the existence of the Complainant's trademarks when the Disputed Domain Name was registered. The Complainant claims the Respondent registered the Disputed Domain Name with the KIDKRAFT mark and the phrase "play kitchen", which describes some of the Complainant's products, to confuse and mislead Internet users and capitalize on the fame and goodwill of the Complainant's marks for its own pecuniary gain. The Complainant claims the Respondent's use of a privacy service to hide its identity and failure to respond to the Complainant's attempts to resolve the dispute outside this proceeding are further evidence of bad faith registration. The Complainant claims the Respondent registered and used the Disputed Domain Name in bad faith. B. Respondent
The Respondent did not respond to the Complaint. The entirety of the Respondent's email on March 16, 2016 reads, "Let them have it." 6. Discussion and Findings
Even in cases where the respondent does not respond to the complaint, the burden remains on the complainant to prove each of the three required elements set forth in the Policy, paragraph 4(a), but the Panel may draw such inferences as are appropriate from the respondent's failure to reply to the complainant's assertions and evidence. See, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. A. Identical or Confusingly Similar
The Complainant provided evidence of its trademark rights and registrations for KIDKRAFT in several prominent jurisdictions and its use of the KIDKRAFT mark for toys and children's furniture, including "play kitchens". The Complainant claims its KIDKRAFT mark is well-known or famous. The Complainant claims that the Disputed Domain Name is confusingly similar to a trademark in which the Complainant has rights. The Complainant cites prior UDRP panel decisions holding that a domain name consisting of the complainant's mark with additional descriptive terms may be confusingly similar to the complainant's mark.
The Respondent has not rebutted these allegations.
The Panel finds that the Disputed Domain Name is confusingly similar to a trademark in which the Complainant has rights under Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
The Complainant claims the Respondent has no relationship with the Complainant and has no rights or legitimate interests in the Disputed Domain Name. The Complainant further claims that the Respondent's use of the Disputed Domain Name for a link site with presumably pay-per-click fees exploiting recognition of the Complainant's mark is not a bona fide offering of goods or services, and does not create legitimate interests in the Disputed Domain Name. See Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright,WIPO Case No. D2007-0267.
The Respondent has not rebutted these allegations.
The Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name under Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
The Complainant claims the Respondent knew, or should have known, at the time of registration of the Disputed Domain Name, of the Complainant and its marks. The Complainant claims the Respondent intentionally attempted to attract, for commercial gain, Internet users to the Respondent's site by creating a likelihood of confusion with the Complainant's mark. See Policy, paragraph 4(b)(iv).
The Respondent has not rebutted these allegations.
The Panel finds that use of the phrase "play kitchen" with the Complainant's mark is indicative of the Respondent's knowledge of the Complainant's mark and its products and shows an intent to attract Internet users seeking the Complainant's products, and the link site at the Disputed Domain Name with apparently pay-per-click links is indicative of the Respondent's attempt to use the Disputed Domain Name for commercial gain. On this basis, the Panel finds that the Respondent registered and is using the Disputed Domain Name in bad faith, under Policy, paragraphs 4(a)(iii) and 4(b)(iv).
The Panel does not reach the questions of whether constructive notice of the Complainant's trademark registrations should be applied to the Respondent; whether use of a privacy service to conceal the identity of the Respondent is evidence of bad faith; or whether the Respondent's lack of response to the Complainant's attempts to resolve this dispute outside of this proceeding is evidence of bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name, , be transferred to the Complainant.
Carol Anne Been
Sole Panelist
Date: May 11, 2016
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